British court denies soldiers' human rights ruling

Judges worried commanders would be more concerned about legal issues than enemy fire.

british soldiers 311 (photo credit: Associated Press)
british soldiers 311
(photo credit: Associated Press)
Britain's Supreme Court overturned a landmark ruling on Wednesday that promised troops on overseas missions protection under human rights law, including the right to life — saying such protections would leave military commanders concerned more about legal issues than enemy fire.
Six of nine justices quashed a lower court decision that said the Human Rights Act applied to soldiers everywhere — even at war. Their judgment said they didn't believe the act was intended to apply to armed forces on foreign soil.
The defense ministry had argued it would be difficult to give soldiers serving overseas or in battle situations the protection required by human rights legislation. They also said it could have an impact on tactical decisions made by commanders who might be concerned about the legal implications of their choices.
"This outcome is not about denying rights to our people, it is about ensuring that we have a clear and workable set of rules under which they can carry out their demanding and dangerous work," said Air Chief Marshal Jock Stirrup, head of the British armed forces.
However, the ruling has worried those who believe the decision could restrict troops' ability to challenge their government over deaths and injuries caused by faulty or missing equipment.
The ruling centered on a case related to the death of Pvt. Jason Smith, 32, who died of heatstroke on a British Army base while serving in Iraq in 2003.
An inquest into Smith's death found the military failed to address the difficulty he had in adjusting to Iraq's climate. A second inquest — which will consider whether his human rights were violated — has already been ordered by a lower court. The Supreme Court agreed that was required in Smith's case, but won't be needed for all military deaths.
Jocelyn Cockburn, who represented Smith's mother, Catherine, called the Supreme Court's ruling "astonishing."
"If you asked British soldiers whose jurisdiction they are under, they would say the United Kingdom. They are bound by and can rely on its laws, wherever they serve in the world," she said. "It can only be hoped that the morale of soldiers who are risking their lives for us will not be severely damaged by this astonishing finding."
In their judgment, justices said it was unlikely when European human rights legislation was drafted after World War II that it was "regarded as desirable or practicable" to be applied to troops overseas, but that issue should be resolved at the European Court of Human Rights in Strasbourg.
Britain's military had argued that it couldn't guarantee the same protection for troops patrolling an Afghan market, as it does to those working in bases or training in the U.K.
"Common sense has prevailed and it is of course right that commanders' orders given in the heat of battle should not be questioned by lawyers at a later date," said Defense Secretary Liam Fox. "It would have been absurd to try to apply the same legal considerations on the battlefield that exist in noncombat situations."
Cockburn suggested that the wider issue, though not Smith's specific case, could eventually be heard at Europe's Court of Human Rights.